As we reported last month, the final Americans with Disabilities Act (“ADA”) rules require employers who offer wellness programs that include disability-related inquiries or medical examinations to provide a written notice to employees.
As predicted, the EEOC has published a sample notice that employers may use to comply with the ADA rules. The EEOC simultaneously released Q&As, summarized below, which provide guidance on using and distributing the notice.
- Who must provide the notice? The employer’s wellness program provider or vendor may provide the notice, but the employer will remain responsible for ensuring that employees receive it.
- Does the sample notice have to be used verbatim? No. As a matter of fact, the sample notice will need to be customized for most wellness programs. For example, the sample notice states: “You will also be asked to complete a biometric screening, which will include a blood test…” Some employers may not offer biometric screenings as part of their wellness program. A notice is sufficient if it informs employees, in language they can understand, what information will be collected, how it will be used, who will receive it, and what will be done to keep it confidential. If all this information is found in a health plan’s HIPAA privacy notice, a separate EEOC notice is not necessary.
- When should employees get the notice? The first day of the plan year that begins on or after January 1, 2017 (January 1, 2017 for calendar year plans). Thereafter, employees must receive the notice before completing a health risk assessment (HRA) or providing any health information and with enough time to decide whether to participate in the program.
- Is an employee’s authorization required? No. The ADA rule only requires a notice, not a signed authorization, although other laws (such as HIPAA) may require an authorization.
- Can the notice be distributed electronically? Yes, provided the delivery method will be effective in reaching all employees being offered an opportunity to participate in the wellness program. The notice may be provided as part of an email sent to all employees with a subject line that clearly identifies what information is being communicated (e.g., “Notice Concerning Employee Wellness Program”). The Q&As point out that employees with disabilities may need special assistance in understanding the notice, and they caution employers against providing the notice along with a lot of information unrelated to the wellness program as this may cause employees to ignore or misunderstand the contents of the notice.
- What notice must be provided to spouses participating in a wellness program? If an authorization is required by GINA, it must describe the genetic information being obtained, how it will be used, and any restrictions on its disclosure. An authoization is required if a group health plan provides an incentive to an employee whose spouse (i) is covered by the plan; (ii) receives health or genetic services, including as part of a wellness program; and (iii) provides information about current or past health status through an HRA. GINA requires that the spouse provide knowing, written and voluntary authorization prior to the spouse completing the HRA.
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On May 16, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) released the final wellness plan regulations under Title I of the Americans with Disabilities Act (“ADA”) and under Title II of the Genetic Information Nondiscrimination Act (“GINA”). The regulations contain new notice requirements and financial inducement rules that apply generally to plan years beginning on or after January 1, 2017. The final regulations describe how employer wellness programs can comply with the EEOC’s interpretation of the ADA and GINA. But the regulations do not align with existing HIPAA wellness plan rules.